Table Of Content

W AD inA^' f\& \>^: A A UMASS/AMHERST Commonwealth of Massachusetts Office of the Attorney General 3120bb01bb52b31 Harshbarger Scott Attorney General *«* m THE ADA AND MUNICIPAL ISSUES Stanley J. Eichner Director, Disability Rights Project Assistant Attorney General Civil Rights Division (617) 727-2200 (V) (617) 727-4765 (TTY) . THE ADA AND MUNICIPAL ISSUES STANLEY J. EICHNER Director, Disability Rights Project Civil Rights Division Office of the Attorney General Boston, Massachusetts 02108 A. Introduction On July 26, 1990, the President signed the American with Disabilities Act ("ADA"), a landmark statute which some disability advocates have characterized as their "Magna Carta". The ADA will have far-reaching effects on the way in which many entities -- private and public -- must operate While the ADA consists of five different titles or sections, each of which covers a different legal context or type of entity, Title II, which covers "public entities", is the title which applies to municipalities. "Public entity" is defined as "any state or local government; any department, agency, special purpose district or other instrumentality of a state .. or local government." 42 U.S.C. § 12115. © StanleyJ.Eichner,Director,DisabilityRightsProject,OfficeoftheAttorneyGeneral " Disability Rights Project^ Office of the Attorney General Page -2- Subtitle A of Title II of the ADA (which are the generally applicable provisions of the Act, in contrast to subtitle B, which applies to public transportation systems) is barely more than a page in length. Its prohibition of discrimination states: "... no otherwise qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity . 42 USC § 12132. Also included within the statute was the requirement that the Attorney General promulgate implementing regulations. Those Title II regulations, 28 C.F.R. Part 35, apply the above general prohibition of discrimination to the specific aspects of governmental entities. This chapter will present the key principles of Title II of the ADA and the application of that non-discrimination mandate to Massachusetts cities and towns. B. Essential Principles Prior to a discussion of the substantive requirements of Title II, it is necessary to review the definition of certain key terms or phrases: 1. Disability The statute's : three-part definition, which essentially adopts the definition of the Rehabilitation Act of 1973, is purposely quite broad. Under the Act, "individual with a disability" is defined as someone who . Disability Rights Project, Office of the Attorney General Page -3- (1) has a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) has a record of such an impairment; or (3) is regarded as having such an impai rment 42 USC § 12102(2) . Physical or mental impairment is defined in the regulations as "any physiological disorder, or condition, cosmetic disfigurement or anatomical loss" affecting at least one body system such as neurological or musculoskeletal, or "any mental or psychological disorder." 28 C.F.R. § 35.104 "Major life activities" are defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." Id. As the definition of "individual with a disability" makes clear, the statute also covers an individual who has a history of such an impairment, as well as someone who —"is regarded as having such an impairment" even if done so erroneously. Examples of people within the first group are persons with histories of mental or emotional illness, heart disease or cancer. Thus, for example, a person who had cancer, but is now completely in remission, would fit within the definition. Similarly, an individual who has a physical impairment, which is not consequential enough to limit a major life activity substantially, but is treated by a municipality as if the person did have such a limitation, would be covered under this third prong of the definition. Disability Rights Project, Office of the Attorney General Page -4- As articulated in the legislative history of the ADA, the basis for including this third category of individuals was a concern that although an impairment itself might not diminish a person's capabilities, societal myths and fears about disability and diseases can have a far more restricting effect. A frequently cited example is a person who was severely burned, and despite not being substantially limited in any of his major life activities, is denied a position of employment based upon an employer's concern that potential customers might have negative reactions. Statutorily excluded from the definition of "disability" are a number of conditions, including transvestism, transsexualism, pedophilia, exhibitionism, and voyeurism. Current illegal drug use is also excluded from the Act's protection, although individuals not engaged in current illegal drug use, and who have successfully completed or are currently participating in a drug rehabilitation program, are within the statute's protection. Finally, a municipality may adopt and administer reasonable policies and procedures, including but not limited to drug testing, to ensure that a person who formerly engaged in the illegal use of drugs is not currently doing so. 2 "Qualified Individual with a . Disability" In order to fall within the protection of the statute, it is not sufficient to have a disability, but the person must be a "qualified individual with a disability." ("QIWD") This has been defined as a individual who, with or without a reasonable accommodation, can meet the essential eligibility requirements for